Opinion: Tribes argue for Indian Health Care Improvement

"A year after passage of national health care reform with the Patient Protection and Affordable Care Act (ACA or “Act”), the entire Act, including the many Indian-specific provisions within, is in danger of being taken away. This is why 349 tribes, either directly or through a tribal organization, signed on to a friend of the court brief filed this month in federal court which argues that these provisions are separate from other provisions in the Act and should stand on their own even if the controversial individual mandate provision is held to be unconstitutional. Many tribes have already implemented these new authorities to address critically important health care needs of Indian people.

Federal district courts in Virginia and Florida held the “individual mandate” to be unconstitutional, but Judge Vinson in the Florida case took a huge step beyond that. In a January 31, 2011, decision, he not only ruled that the “individual mandate” was unconstitutional, he went on to declare the entire ACA unconstitutional. Judge Vinson reasoned that the Act was finely crafted by Congress and that if the individual mandate must be removed because it is unconstitutional the entire statute cannot function as originally designed, so the entire Act must be struck down. In contrast, the normal rule, based on decades of established Supreme Court precedent, is that when a court finds a portion of a statue unconstitutional, they have an obligation to preserve as a much of a statute as can be preserved, by separating and saving those portions that are practically and legally independent.

The tribal amicus brief argues that the Indian-specific provisions, including the permanent reauthorization of the Indian Health Care Improvement Act (IHCIA), have a separate history from the individual mandate provision, that they involve legally independent rights and obligations related solely to Indian tribes and Indian people and should remain valid if the individual mandate is severed from the ACA. In fact, the IHCIA component was added at the last minute to the bill that became the ACA because it was a moving legislative vehicle, not because it was related to the “individual mandate” component."